Filed 7/24/14 P. v. Fernandez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

MELISA LIZETTE FERNANDEZ, 

Defendant and Appellant. 

 H039640 

 (Santa Clara County 

 Super. Ct. No. C1242453) 

 Defendant Melisa Lizette Fernandez was placed on probation after pleading no 

contest to felony sale of a person for immoral purposes (Pen. Code, § 266f)1

 in exchange 

for the People’s dismissal of five felony counts of human trafficking (§ 236.1, subd. (a)). 

The charges were based on allegations that defendant and her boyfriend (her codefendant 

in the trial court) forced defendant’s cousin into prostitution. Defendant contends that the 

trial court erred in imposing a probation supervision fee without first determining her 

ability to pay and that certain probation conditions are unconstitutionally vague and 

overbroad. For the reasons stated here, we will modify the challenged conditions and 

remand for the trial court to determine defendant’s ability to pay the probation 

supervision fee. 

 1

 Unspecified statutory references are to the Penal Code. 
2 

I. TRIAL COURT PROCEEDINGS 

 The following factual summary is based on testimony by San Jose Police Officers 

Jonathon Levos and David Gonzales at defendant’s preliminary hearing based on 

statements to them from the victim. Defendant and her boyfriend picked up the victim 

from Stockton under the pretense of taking her to a party. Once the victim got into the 

car, however, defendant informed her that the victim’s father had allegedly paid 

defendant and her boyfriend $4,000 to have the victim raped “in retaliation for [the 

victim’s] sister being raped.” Defendant and her boyfriend eventually drove the victim to 

a motel in Concord, where defendant took photographs of the victim while the victim was 

“scantily clad” and posted them online to a website for the purpose of soliciting 

prostitution. The victim told the officers she was forced to have sex with several men in 

return for money in Concord as well as in motels in San Mateo, Vacaville, and San Jose. 

After each encounter, the victim turned the money over to defendant or her boyfriend. 

The victim managed to escape and call the police, who arrested defendant and her 

boyfriend. 

 Defendant and her boyfriend were held to answer and defendant was charged by 

information with five counts of human trafficking (§ 236.1, subd. (a)) and one count of 

procuring the victim for the purpose of prostitution (§ 266i, subd. (a)). The section 266i 

count was later amended as part of a plea agreement to one count of sale of the victim for 

immoral purposes (§ 266f) because the section 266i count prohibited probation. 

Defendant pleaded no contest to the section 266f count. The trial court dismissed 

defendant’s five human trafficking counts, suspended imposition of sentence for three 

years, and placed defendant on formal probation with conditions, including one year in 

county jail, deemed satisfied by presentence custody credits. 

 Defendant challenges three other probation conditions in this appeal: (1) 

defendant “shall have no contact with the victim or victims in this case”; (2) defendant 

“shall not access the Internet or any other online service through use of a computer or 
3 

other electronic device at any location including place of employment without prior 

approval of the probation officer”; and (3) defendant “shall not clean or delete Internet 

browsing activity and must keep a minimum of four weeks [of] history unless approved 

by the probation officer.”2

 Defendant’s trial counsel objected to the probation conditions 

related to the Internet, arguing they “violat[e] Miss Fernandez’s constitutional rights 

under both [the] California and Federal constitutions.” The court overruled the objection 

and found a factual basis for the conditions. 

 The trial court also imposed a probation supervision fee “not to exceed 110 dollars 

per month,” citing section 1203.1b. Defense counsel objected that the court had not 

determined defendant’s ability to pay any fines or fees. The court ordered defendant to 

file a statement of assets “before we finish up today” and indicated it would review the 

statement. Shortly thereafter, the court overruled the objection, restated its “order that we 

have a statement of assets before we conclude today,” and indicated “we’ll take care of 

that when [we] recall the matter.” The minute order from that hearing includes a 

probation supervision fee of $110 per month but the record on appeal does not contain a 

statement of assets or other documentation suggesting further discussion of the issue. 

II. DISCUSSION 

A. FELONY PROBATION CONDITIONS

 Defendant claims that three of the felony probation conditions imposed by the trial 

court are unconstitutionally vague because they lack explicit knowledge requirements. 

Defendant also contends the condition restricting access to the Internet is overbroad and 

must be stricken in its entirety. 

 When imposing felony probation conditions, a trial court has broad discretion to 

impose “reasonable conditions ... [that] it may determine are fitting and proper to the end 

that justice may be done ... .” (§ 1203.1, subd. (j).) Absent a timely objection in the trial 

 2

 These orally-pronounced conditions do not materially differ from those attached 

to the minute order from the May 2013 hearing. 
4 

court, on appeal a defendant may not challenge the reasonableness of a probation 

condition. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882 (Sheena K.).) However, 

claims that a probation condition is unconstitutionally vague or overbroad can be raised 

for the first time on appeal so long as the claim presents a pure question of law that can 

be resolved without reference to the sentencing record. (Id. at pp. 887-889.) 

 Unconstitutional overbreadth occurs when a probation condition “substantially 

limits a person’s rights and those limitations are not closely tailored to the purpose of the 

condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) Thus, “[a] 

probation condition that imposes limitations on a person’s constitutional rights must 

closely tailor those limitations to the purpose of the condition to avoid being invalidated 

as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.) 

 Vagueness challenges are based on “the due process concept of ‘fair warning.’ 

[Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is unconstitutionally 

vague if it “either forbids or requires the doing of an act in terms so vague that [a person] 

of common intelligence must necessarily guess at its meaning and differ as to its 

application ... .” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391.) 

Defendant’s opening brief appears to suggest the Sheena K. court held that “[f]ederal due 

process considerations require that probation conditions contain ‘an express requirement 

of knowledge’ or else, as a result of a condition that lacks reasonable specificity, the 

probationer may unwittingly violate a condition.” (Quoting Sheena K., supra, at p. 891.) 

However, while the Supreme Court found the addition of an express knowledge 

requirement necessary for the specific condition at issue in that case, the court did not 

make the sweeping mandate attributed to it by defendant. Instead, the Sheena K. court 

explained: “A probation condition ‘must be sufficiently precise for the probationer to 

know what is required of him, and for the court to determine whether the condition has 

been violated’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” 

(Sheena K., supra, at p. 890.) 
5 

 When analyzing claims that probation conditions are unconstitutional, we are 

mindful that probation violations must be willful to justify revocation of probation. 

(People v. Rodriguez (2013) 222 Cal.App.4th 578, 594 (Rodriguez); People v. Cervantes

(2009) 175 Cal.App.4th 291, 295; People v. Galvan (2007) 155 Cal.App.4th 978, 982; § 

1203.2, subd. (a).) Further, “[a] probation condition should be given ‘the meaning that 

would appear to a reasonable, objective reader.’ [Citation.]” (People v. Olguin (2008) 45 

Cal.4th 375, 382.) If modification of a probation condition will cure a constitutional 

defect, we may modify the condition on appeal. (Sheena K., supra, 40 Cal.4th at p. 892.) 

1. No Contact Condition 

 Defendant challenges the condition prohibiting contact with the victim as 

unconstitutionally vague absent an express knowledge requirement because she could 

unintentionally violate the condition “if she picks up a phone call from the victim when 

she does not recognize the number or if she accidentally runs into the victim.” 

 We find it unlikely that a probation officer or a court would deem the passive 

conduct described by defendant a willful violation of the no contact condition. 

(Rodriguez, supra, 222 Cal.App.4th at p. 594.) However, in the interest of specificity and 

in light of the People’s concession that “adding a knowledge requirement would prevent 

the situation where appellant unwittingly came into contact with the victim,” we will 

modify this condition to read: “Defendant shall not knowingly have contact with the 

victim in this case.” Given that there was only one victim in this case and defendant 

knows who that victim is, we decline defendant’s request that we further modify the 

condition to specify the victim’s name. Our decision to omit the victim’s name is also 

informed by the interest in preventing publication of the names of victims of sex crimes. 

(California Style Manual (4th ed., 2000) § 5.9, pp. 179-180.) 

2. Condition Restricting Internet Access 

 Defendant challenges the condition that she “shall not access the Internet or any 

other online service through use of a computer or other electronic device at any location 
6 

including place of employment without prior approval of the probation officer.” 

Defendant first argues that we should strike the condition in its entirety because “only a 

more narrow probation condition would be practical or reasonable.” The fundamental 

flaw in defendant’s argument is that, because she did not challenge the reasonableness of 

the condition below, she may not challenge it as unreasonable on appeal. (Sheena K., 

supra, 40 Cal.4th at pp. 881-882.) In the trial court, defendant’s only ground for 

objection was that the Internet conditions violated her constitutional rights. Thus, we will 

only address whether the condition is unconstitutionally overbroad or vague. 

 “A probation condition that imposes limitations on a person’s constitutional rights 

must closely tailor those limitations to the purpose of the condition to avoid being 

invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.) In 

her brief, defendant does not identify any constitutional right that is limited by the 

probation condition’s restriction on Internet usage. Instead, defendant discusses a series 

of everyday activities that involve the Internet to show the ubiquity of that resource. 

Because defendant does not identify a constitutional right that is limited by the condition, 

her overbreadth challenge is unpersuasive. 

 Even if defendant had identified a constitutional right and showed that the 

probation condition “substantially limit[ed]” that right, (Harrisson, supra, 134 

Cal.App.4th at p. 641), we find that any limitation is closely tailored to the purpose of the 

condition. Defendant committed the offense for which she pleaded no contest by posting 

pictures of the victim on the Internet for the purpose of soliciting prostitution. By 

limiting defendant’s access to the Internet, the condition serves the purpose of keeping 

defendant “away from situations likely to lead to criminal conduct.” (Rodriguez, supra,

222 Cal.App.4th at p. 590.) Further, like the condition another panel of this court 

approved in People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), the condition at issue 

is not a “blanket prohibition” on Internet access because it “grants defendant the ability to 
7 

access the Internet on [her] computer and other electronic devices so long as [s]he obtains 

prior permission from [her probation] officer.” (Id. at pp. 1349-1350.) 

 As for whether the condition is vague, defendant contends that without an express 

knowledge requirement she “could violate the condition by unwittingly accessing the 

Internet in her day-to-day life” and notes that the court in Pirali modified an almost 

identical condition to address this concern. (Citing Pirali, supra, 217 Cal.App.4th at pp. 

1350-1351.) Although we again express doubt that a probation officer or a court would 

find a willful violation and revoke defendant’s probation if she accessed the Internet 

unwittingly, given the pervasiveness of the Internet in daily life as well as the People’s 

concession that “adding a knowledge requirement would prevent the situation where 

appellant ... unknowingly accessed the Internet,” we will modify the condition as 

follows: “Defendant shall not knowingly access the Internet or any other online service 

through use of a computer or other electronic device at any location including place of 

employment without prior approval of the probation officer.” 

3. Condition Requiring Retention of Internet Browsing History 

 The final challenged condition states that defendant “shall not clean or delete 

Internet browsing activity and must keep a minimum of four weeks [of] history unless 

approved by the probation officer.” Like the other conditions, defendant claims that the 

condition needs an express knowledge requirement because, as currently drafted, she 

could violate probation by “accidentally delet[ing] her Internet browsing history through 

the wrong click of a button.” 

 Because this condition is related to a feature of Internet browsing about which 

average users might be unfamiliar, the addition of an explicit knowledge element will 

protect defendant from truly inadvertent acts while still serving the purpose of ensuring 

that her probation officer can track defendant’s Internet activity as necessary. Thus, we 

will modify the condition to read: “Defendant shall not knowingly clean or delete Internet 
8 

browsing activity and must keep a minimum of four weeks of history unless approved by 

the probation officer.” 

B. PROBATION SUPERVISION FEE AND DEFENDANT’S ABILITY TO PAY

 Defendant argues, and the People concede, that the trial court imposed a $110 

probation supervision fee without first determining defendant’s ability to pay. 

 Section 1203.1b governs the imposition of probation supervision fees and provides 

that unless a defendant gives up the right to a determination “by a knowing and 

intelligent waiver,” the trial court must hold a hearing following the procedures set forth 

in that section to determine whether defendant has the ability to pay the cost of probation 

supervision. (§ 1203.1b, subds. (a), (b).) Failure by the trial court to make this 

determination requires reversal and remand for a hearing on a defendant’s ability to pay. 

(People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400-1401, disapproved on another 

ground by People v. McCullough (2013) 56 Cal.4th 589, 598-599.) 

 Here, upon defense counsel’s objection that the trial court had not determined 

defendant’s ability to pay, the trial court ordered defendant to provide a statement of 

assets and indicated the court would review the statement and make a determination 

“when [we] recall the matter.” Although the minute order indicates the court imposed a 

$110 probation supervision fee, there is no evidence in the record to support a finding 

that the court considered a statement of assets or actually determined defendant’s ability 

to pay. For this reason, we must remand so that the court can follow the procedure set 

forth in section 1203.1b and determine whether defendant has the ability to pay a 

probation supervision fee. 

III. DISPOSITION 

 The order is reversed. The probation supervision fee of $110 is stricken pending 

determination by the trial court, in accordance with section 1203.1b, of defendant’s 

ability to pay. The trial court is further instructed to modify the three probation 

conditions discussed in this opinion so that they read: (1) “Defendant shall not 
9 

knowingly have contact with the victim in this case;” (2) “Defendant shall not knowingly 

access the Internet or any other online service through use of a computer or other 

electronic device at any location including place of employment without prior approval of 

the probation officer;” and (3) “Defendant shall not knowingly clean or delete Internet 

browsing activity and must keep a minimum of four weeks of history unless approved by 

the probation officer.” 

 ___________________________________ 

 Grover, J. 

WE CONCUR: 

____________________________ 

Bamattre-Manoukian, Acting P.J. 

____________________________ 

Mihara, J.